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MI: SCOTUS to consider Snyder v. Doe for review

Today, in a private session, the U.S. Supreme Court will be discussing an important case concerning the sex offense registry. News may come as soon as Monday, March 27th. The State of Michigan has asked the court to review a ground-breaking ruling by a lower federal court, the U.S. Sixth Circuit Court of Appeals. The Supreme Court is set to discuss the request for review today; review is granted in very few cases. If they turn down the request – the 6th Circuit ruling remains intact and directly impacts the states in the 6th Circuit (Michigan, Ohio, Kentucky, Tennessee). If they grant review – anything can happen. If accepted for review, the case would not be heard until the Fall. Below are links to the 6th Circuit ruling, news headlines that explain its importance, and the documents for the Supreme Court review.  –Bill Dobbs, The Dobbs Wire

Also see: http://www.scotusblog.com/case-files/cases/snyder-v-doe/

Washington Post | Aug. 26, 2016 | By Fred Barbash
Court says Michigan sex offender registry laws creating ‘moral lepers’
https://www.washingtonpost.com/news/morning-mix/wp/2016/08/26/court-mich-treating-sex-offenders-as-moral-lepers-restrictions-struck-down/

Reason.com | Aug. 26, 2016 | By Jacob Sullum
6th Circuit Says Mich. Sex Offender Registry Is Punitive and, Not Incidentally, Stupid
http://reason.com/blog/2016/08/26/6th-circuit-says-michigans-sex-offender

Mimesis Law | Aug. 26, 2016 | By Andrew Fleischman
Sixth Circuit: Michigan’s Sex Offender Registry Is Punitive

Simple Justice | Aug. 27, 2016 | By Scott Greenfield
The 6th Circuit Finally Said The Magic Word: Punitive
https://blog.simplejustice.us/2016/08/27/the-6th-circuit-finally-said-the-magic-word-puniti ve/

Michigan Radio | Aug. 26, 2016 | By Jack Lessenberry
Michigan’s sex offender law is unfair and probably unconstitutional
http://michiganradio.org/post/michigans-sex-offender-law-unfair-and-probably-unconstitutional#stream/0

Slate | Aug. 26, 2016 | By Mark David Stern
Appeals Court Issues Scathing Ruling Against Michigan Sex Offender Penalties
http://www.slate.com/blogs/xx_factor/2016/08/26/appeals_court_strikes_down_michigan_sex_offender_penalties.html

Request for review by the U.S. Supreme Court – documents

Petition for writ of certiorari by the State of Michigan
http://www.scotusblog.com/wp-content/uploads/2017/02/16-768-cert-petition.pdf

Opposition brief for John Does #1-5 by the Michigan ACLU and Michigan Clinical Law Program
http://www.scotusblog.com/wp-content/uploads/2017/02/16-768-BIO.pdf

Reply brief by the State of Michigan
http://www.scotusblog.com/wp-content/uploads/2017/03/16-768-pet-cert-reply.pdf

Join the discussion

  1. ma.concerned.citizen

    It would be great if someone in the know (Janice?) could explain exactly what the ramifications are for not only the 6th circuit, but potentially the rest of the country, if SCOTUS turns down the request for review.

    I’ve heard and read many conflicting thoughts on this, anywhere from Michigan’s registry would be considered unconstitutional and shut down, to anything after the original 2003 decision being considered ex post facto country wide, to a million other thoughts.

    I know there is a lot riding on this, but I’d like to know exactly WHAT is riding on this? Does it open the door for the registry itself to be considered unconstitutional? Megan’s Law? Nothing? Everything?

    Thanks!

  2. ReadyToFight

    I’m on edge. Let’s go Michigan! Praying for everyone…

  3. Marie

    So what do we want? A non-review that may open the door to many more lawsuits being successful?

    Or do we want a review now and with this case??

  4. Bobby

    I really hope they turn down the review that way we here can finally win this damn thing, and changes can finally be changed, especially for those of us here in Michigan that have been on it since 92 before Michigan even had a registry. I was but on it for 25 yrs, but it was later changed to LIFE, I started my registration in 95, then it was changed to my conviction date 92. so if I go back to 25 yrs my registration will be over in June, unless they put my registration date back to 95 then it won’t be till 2020,but at least I can petition to be removed from the registry now since I have not been in trouble since 1992. I guess it just wait and see now, fingers crossed.

    • American Detained in America

      We’re kinda thinking alike except for this…I kinda hope they do review it and make a clear determination that the registry is actually punitive. That will settle it once and for all…and for all of us!

  5. Bill

    Anyone who claims this system is not punitive is a liar. If its not punitive then why does it resemble probation or parole? I have cops knocking on my door at their whim to see if I’m living here, even tho I go to the sheriffs every 3 months to tell them I do live there, show them my drivers license that has that address. Whats more, anyone who claims this system works is a liar also. All this crap is is feel good legislation, our political leaders doing crap to make people think they have done something. I’m tired of it, and I hope the SCOTUS dismantles all of this.

    • PK

      High Fives to ya! I’m so sick of it that I wouldn’t even consider living back the the U.S. full time- That’s no way to have a future.

      And my case isn’t even that bad, I’m not required to register where I live.

      But the state where I was convicted (and no longer live nor work) (and live hundreds of miles away) (and don’t pay taxes there) — there, I’m forced to register for fricken ever.

      Misdemeanor Sex Offender convicted 17+ years ago, apparently is a great danger to the people of that state. BS Man!

    • Cool CA RC

      as you recall getting a Price Club membership is not punished. and that how they see it.

  6. James

    I am not sure that accepting review is a good thing…but if there is a split in opinion in the circuits, the Supremes will have to hear some kind of case to resolve the conflict between circuit courts.

    Refusing the Michigan case would have meant, I think, that the entire punitive registration edifice in that District would collapse….Yeah!!!!!!!

    But that would not have been allowed….other states, other districts would be howling…

    I don’t see the SCourt ruling in our favor on this….it would take too much courage….but who knows? A partial victory might be in the cards…but destroying the registry and overturning Smith, I just don’t see it as possible.

    Still, this is maybe better heard, or at least argued as soon as possible….before Gorsech is seated.

    There are a lot of moving parts here….but I think we are just on a wing and a prayer…though I hope I am wrong.

    Best Wishes, James

    • James

      I have re-read the Michigan case and its facts…they are as favorable as possible to our position against the registry…so, in summary, better Doe v. Snyder than some other weak tea factual case.

      We in California actually have it pretty easy compared to Michigan. Michigan really is Punitive…so better this case than one out of California.

      I wish us all luck.

      James

      • New Person

        you should review the five factors the SCOTUS determined the registry a regulatory scheme and not punitive. then compare that to what is truth today.

        a considerable basis was due to public safety b/c ALL sex offenders have an 80% recidivism rate.

        That’s right, the SCOTUS made every registrant as one group and not individuals due to the high recidivism rate.

    • davidh

      James

      A clue may come by way of the social media case in Carolina, just heard and expected in June

  7. Jack

    If Gorsuch is confirmed we are completely screwed. He has to be stopped.

    • American Detained in America

      If you look at some key decisions, Gorsuch isn’t as bad for us as many of you think. He has clearly had issues with SORNA and how it was applied, so there is a chance he would look at the registry as a whole rationally and objectively.

    • davidh

      James

      I understand that even if confirmed he wont make it there until Fall. I dont know if he’d be party to it– or have a negative bent on it or not???

      • davidh

        I just want California tiered registry to be over before any ruling or sign of an outcome–or these idiots may get brave again

        • James

          I think I would be braver in defense of RSO’s were I personally off the registry…but I may just be lying to myself….Having lived under this as we all have…I think I may have some considerable PTSD whenever this is mentioned…I flinch…a lot…lol

          Damned if I know. It is probable I will continue to be a coward in these regards.

          However, David, I don’t know what this means:

          “I just want California tiered registry to be over before any ruling or sign of an outcome..”.

          If the SC reversed Smith and ruled that this was Punitive or Ex Post Facto…(two avenues of winning), then there largely would be no need (at all) for the tiered bill.

          Best Wishes, James

          • davidh

            A bird in the hand–tier registry bill (which would be stricken with a favorable SC ruling) is worth two in the bush (unknown outcome)

          • American Detained in America

            James, I think most of us would agree about the PTSD thing, 5 years off parole and I still find myself feeling like I did on parole.

    • David Kennerly

      We should be grateful that Merrick Garland was not confirmed into SCOTUS as he would have been, based upon his record, almost certainly worse than Gorsuch appears to be based upon his record.

      • davidh

        I was feeling that too about Garland–Obama I believe intentionally got a conservative justice pick, knowing he was going to have a fight

    • Michael

      Gorsuch changes nothing because it does not change the makeup of the court — it would still be a right leaning majority. They key to the whole thing is Kennedy, and getting him to change is opinion on recidivism.

      ….

      • davidh

        such a simplistic “key” –it does not boil down to Kennedy — there is a scared America out there they’ve created along with the interests that go along with it– the supreme court will not in a stroke of a pen shut down every registry and make your life all better. With a fair court ruling the best you’ll get is a chipping away at the fringes

  8. mike r

    this is the only leg the state is trying to stand on.that if it stands it effects the entire federal registration scheme..

    In any event, the Does’ current argument purports to override any differences among statutes. For example, they cite virtually the same bullet list of “facts”— really social-science claims—that they provided to the Sixth Circuit, Br. in Op. 17–19, which they argue support the conclusion that Michigan’s SORA is punitive. These “facts” would threaten virtually every aspect of sex-offender registration, in Michigan and elsewhere. E.g., Br. in Opp. 17 (“Public registries are likely to increase rather than decrease recidivism.”); id. (“Exclusion zones have no impact on or may even increase recidivism.”); id. at 19 (“Tier classifications do not correspond to the actual risk of recidivism.”); id. (Conviction-based registries “compromis[e] law enforcement’s ability to monitor and the public’s ability to identify those who are truly dangerous.”). Indeed, all but one of the Does’ bulleted “facts” would threaten the federal SORNA. The Does challenge not just the cumulative effect of Michigan’s law—they challenge its basic components.

    I really hope SCOTUS does the right thing and either excepts review and affirms the lower court decision or simply denies review…this is big…

  9. USA

    This is a very interesting article. In summary, it basically questions how it if new sex offended laws (tiers) can be retroactively applied? Can they or can they not? This would be interesting. This would certainly apply to the laws being proposed here in Ca.

    • davidh

      I thought it an excellent article, as well; although, there were so many twists and turns the author had me guessing which side the coin would land throughout

  10. AJ

    I think either way is a win, though in different ways. SCOTUS denying hearing the appeal would cement this decision for the Ex Post Facto (EPF) element, making it easier to chip away further at things. Ex: I live in a state other than where convicted, and have harsher requirements than there. If EPF is upheld, it would seem it would also kick in my 14th Amendment rights, right? (Not an attorney, just surmising.) On the other hand, if SCOTUS does take it, there are the two outcomes. If they uphold 6th Circuit, game over for the harsh registration requirements across the states (and at the Fed level too? IML maybe even?). If they don’t hear the case, it simply means they’re stalling, as they will eventually have to take the case to resolve differences among the Circuits.

    I think the idea of attacking the Act as a whole–the “scheme” as SCOTUS mandated–is the key to what may be our success. SCOTUS ruled in Smith that essentially all Alaska was doing was compiling various publicly available data and publishing them. As we all know, what’s different nowadays is that people are told where I work and/or go to school (not public), they make me register vehicles I operate even if I don’t own them (own: public, not-owned: public, but not connected to me), they tell me where I can live (not part of Smith), and whether I can be near to or present within various public buildings (not part of Smith).

    I think the way the legislatures (including Congress) have taken a mile when SCOTUS gave a very specific inch is going to fail in time. Toss in the numerous studies, both by clinicians and the DoJ itself, showing the recidivism rate is nowhere near what Kennedy claimed in Smith, and I think SCOTUS would/will say things have gone too far. These rules and laws are just like raindrops, no one of them is responsible for the flood, but in totality, they’re deluging us.

    It’s so nice to see some good movement on this at the federal and state supreme court levels. They’re the only ones without a need to get re-elected, and they are more likely to assess the law rationally, versus what’s popular.

    As to Gorsuch, I am quite hopeful about him. His being a Coloradoan almost automatically makes him libertarian (small “L”), which I think is good. His originalist view regarding the Constitution I think also plays in our favor.

    In short…I think this is a win no matter what. One way is the short route to SCOTUS, the other way is a longer (read: more painful) route.

    –AJ

  11. mike r

    Wow finally someone with some intelligence making a real argument using facts and data and hitting every head on the nail…My god this is so f>>>>>. fantastic that its finally going to start the ball rolling….Once this happens its thru its just a matter of one more case with the precedence that comes from this case and bam the whole thing has to be rehashed to only include the people that the government can prove with clear and convincing evidence is a threat to the public….Its happening folks …some said it couldn’t be done and doubted it would happen but here is the beginning of the end…Thank god…..I don’t want to jinks it but knock on wood it can nottttt lose…There is no way by any stretch of the imagination that the court or any reasonable mind can disregard the truth “this beast is a travesty of justice and an unconstitutional catastrophic monstrosity that’s out of control….

    Janice and team are heros but Here are our real civil rights Vanguard and Superhero’s
    Miriam J. Aukerman
    Counsel of Record
    AMERICAN CIVIL LIBERTIES
    UNION FUND OF MICHIGAN
    1514 Wealthy St., Ste. 242
    Grand Rapids, MI 49506
    (616) 301-0930
    maukerman@aclumich.org
    Michael J. Steinberg
    AMERICAN CIVIL LIBERTIES
    UNION FUND OF MICHIGAN
    2966 Woodward Ave.
    Detroit, MI 48201P
    Paul D. Reingold
    MICHIGAN CLINICAL LAW
    PROGRAM
    801 Monroe Street
    Ann Arbor, MI 4810

  12. mike r

    That’s hilarious that the government states “they cite virtually the same bullet list of “facts”— really social-science claims—that they provided to the Sixth Circuit” Um hate to tell them but its not really a claim if every single independent entity on the planet comes to and acknowledges the same facts…That’s like saying global warming isn’t real but just social-science claims, or that staring at the sun will make you go blind is just social-science and isn’t real….I really don’t see a way out for the court on this…..If they don’t recognize the social science and apply it correctly along with the constitution in this case then our country is beyond help…Completely and Totally gone!!!!!!!!!!!!!

  13. Agamemnon

    Again, while it could be argued that the registry itself is “administrative,” any and all laws that target people ON the registry – especially after they’ve served their sentences – is absolutely punishment.

    • New Person

      Actually, if you’re using the 2003 Smith decision as the basis of “administrative” scheme, then today’s scheme deviates above what was considered a regulatory threshold.

      It appears no one is looking at the five factors the SCOTUS used to make its decision as regulatory, just the final outcome.

  14. Bob

    All the way to the supreme court please!!!. I hope they consider the Michigan case!….The opinions by the justices in the lower Federal court are in the same frame mentality as some of the justices in the Supreme court. I would say all of them with the exception of maybe 3 justices. The Michigan case is an opportunity back door into the 2003 Smith V Doe. With all the evidence and facts coming from every outlet now, this can put pressure and be very well overturned and watch the whole system collapses like a domino set. If they do consider the case, it better be represented by a tooth and nail fighting attorney/attorneys that is/are very familiar with all of this – well beyond prepared and leaving nothing out. Hope we can here the words in the opinions – “unconstitutional and punitive” all across the panel. Crossing my fingers and hoping.

    • Bobby

      I personally hope they deny the review, I have been on this stupid Michigan Registry since the early 90’s I was unconstitutionally put on it. When I was sentenced Michigan did Not even have a registry, but the powers that be said put him on it anyway even though it’s wrong. So I honestly hope they deny the review and get this over with already.

  15. Michael

    In it’s reply, the state cites a risk of losing federal law enforcement funding. Is funding really an excuse for allowing punitive laws to stand? Moreover, how is not enforcing federal law untenable? Is the state of Michigan not aware of previous SCOTUS rulings regarding a obligation of a state to enforce federal law or pass laws that mirror federal law? SOR laws exist because the federal government strong armed states into passing laws that mirror federal legislation or risk the loss of funds. In 2009, it was estimated that the cost to operate Michigan’s registry under SORNA, the first year, would total $16,336,082. Failing to implement SORNA would have cost the state $679,317 in Byrne funds.

    http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf

    It’s actually makes economical sense to stop enforcing the laws all together.

    ….

    • Joe

      Michael, the cost issue is one reason that some states have chosen not to comply with SORNA.

  16. Bobby

    So who hopes that SCOTUS denies Michigan’s request for a review tomorrow? Personally I hope SCOTUS does the right thing and denies the review. Reading Michigan’s petition they are so far off base and it is obvious the state of Michigan is lying about the registry, I just hope SCOTUS see’s through Michigan’s lie’s and deception. I really hope SCOTUS does the right thing and denies the review and those of us that have been on Michigan’s registry for the last 25 years will finally get some relief.

    What does everyone else think SCOTUS will decide to do tomorrow? Grant review or Deny review

    me: I hope they DENY REVIEW

    • Biol57

      I am hoping that the SCOTUS reviews and upholds the 6th with an equally scathing decision that affects all registered citizens. It is time for the SCOTUS to dismantle the framework for injustice that their court engineered.

  17. Scotus save us now

    Its funny… Ppl in Michigan hope it’s denied the hell with anyone else… I hope it’s heard and upheld. Help every one.

  18. ReadyToFight

    Mike r,
    You said- I really hope SCOTUS does the right thing and either excepts review and affirms the lower court decision or simply denies review…this is big…
    Is there a Third scenario in your opinion? Or do you think it’s an either or ruling at this point?

  19. Biol57

    No grant at this point. SCOTUS asked for briefing from the Federal Government

    16-768 SNYDER, GOV. OF MI, ET AL. V. JOHN DOES #1-5, ET AL.
    The Acting Solicitor General is invited to file a brief in
    this case expressing the views of the United States.

    https://www.supremecourt.gov/orders/courtorders/032717zor_k536.pdf

  20. Lovecraft

    In today from scotusblog:

    16-768 SNYDER, GOV. OF MI, ET AL. V. JOHN DOES #1-5, ET AL.
    The Acting Solicitor General is invited to file a brief in
    this case expressing the views of the United States.

  21. Bobby

    So it sounds like we here in Michigan, and even other States are basically SCREWED now, I guess the whole thing was for nothing, we all know what the Government/Solicitor General is going to say, they will say it protects children and we all know it does not, they will say that it is NOT PUNITIVE, and we all know that it is they will say that it is definitely Constitutional and in NO WAY violates the US Constitution.

    Letting the Solicitor General come up with a Brief of his own, is a BIG MISTAKE and it will blow up in our faces, ALL Registrants FACES from Alaska to Hawaii to Florida. Does anyone know how long we have to wait now for a SCOTUS decision. a week a month 6 months a year?.

  22. AJ

    I find it funny that part of Michigan’s argument for why SCOTUS should overturn is because affirming would take down SORNA and/or cause them a loss of funding. Umm, yeah and duh! That’s what happens when a law is found to be unconstitutional. That SORNA may fall from this suit simply means it follows/ed the same unconstitutional overreach beyond Smith. But to argue “you gotta let us win or we lose money” is stupid at best.

    • Biol57

      AJ: I read that part of the brief to argue that if the state can’t apply their registration requirements retroactively, that they would not be in compliance with SORNA, which requires a retroactive application of the law. That said, I can see how this challenge, if upheld, may threaten retroactive application of all sex offender laws and ultimately threaten SORNA and the AWA.

  23. mike r

    Yea I would imagine that the court could end up sending this back down to the lower courts just as they did in the taylor case to build more of a record which as we know it took several years for that case to run thru the courts. But I don’t think that is going to happen in this case since the issues at hand are not as complex as the taylor case and there really isnt any disputed facts other then whats in this record and our side has debunked them pretty damn good… I would also imagine that even if the court just denies review then someone in each state, not in the district where this filing took place will have to file suit before it would do anything to there particular district..Now if scotus grants review and upholds the lower courts decision then it will become law of the land and states would have to modify there entire scheme to more narrowly tailored and even then that would not hold up because of the need to justify the scheme that they put in place because of the precedence that would be set by this case…I believe no retro-activity, tailored to only those who the gov. or state can prove thru clear and convincing evidence standards are enough of a threat to public safety to justify putting them on the registry, in court on the record and only after a hearing. They will have to apply the same standard as they do for civil commitment… Or they might just cut the retroactive part and not even address the justification issue and make it all have to run thru the court system again where that issue and only that issue is the argument . That would make them have to address it without just saying this is this and we dont need to discuss the other issues because this issue decides the case before us bs. They are famous for that crap…

  24. Conceptual thinking

    I may be off base here, but I have to share anyway on this topic and registries from a conceptual level.

    There are registries for many offenses, e.g. Ohio has a DUI registry, states have felony registries, etc, but they are not as effective as people are finding and actually are detrimental to people (not just RCs – Registered Citizens). What is interesting is what SCOTUS determines COULD be applied to ALL registries conceptually, not just RC registries, which is in interest in here.

    It is mentioned many times in an analogous manner, first they came for this group of people, then this group of people, and so on; so, if what you do on one type of registry is applicable, then it could be spread to others. Not saying it will, but conceptually, it is possible. Where does it stop then?

    So, what do you want? Review and gamble they find registries are unconstitutional, etc (SCOTUS has overturned themselves before) or Non-Review and sacrifice the 6th Circuit states for the good of the nation and then slowly watch the rest of the country catch up to the 6th Circuit while Congress scrambles to find new federal laws to compensate? There is more than federal money at risk here, but money received from those who have to pay a fee to register. I think, the kicker is the rest of the world is watching too on this since we are a nation of rights and freedoms, supposedly.

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